Rejanish K.V vs K. Deepa

2025 INSC 965 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/INHERENT/ORIGINAL JURISDICTION

CIVIL APPEAL NO. 3947 OF 2020

REJANISH K.V ….APPELLANT

VERSUS K. DEEPA AND OTHERS .…RESPONDENTS With WRIT PETITION (C) NO. 759 OF 2017

WRIT PETITION (C) NO. 1278 OF 2019

REVIEW PETITION (C) NO. 381 OF 2021 IN WRIT PETITION (C) NO. 396 OF 2018

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REVIEW PETITION (C) NO. 1027 OF 2021 IN WRIT PETITION (C) NO. 405 OF 2016

REVIEW PETITION (C) NO. 379 OF 2021 IN WRIT PETITION (C) 578 OF 2018

MISCELLANEOUS APPLICATION NO. 179 OF 2021 IN WRIT PETITION(C) NO. 405 OF 2016

REVIEW PETITION (C) NO. 669 OF 2021 IN WRIT PETITION (C) NO. 999 OF 2019 Signature Not Verified

REVIEW PETITION (C) NO. 380 OF 2021 Digitally signed by DEEPAK SINGH Date: 2025.08.12

IN 17:15:25 IST Reason:

WRIT PETITION (C) NO. 222 OF 2017

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REVIEW PETITION (C) NO. OF 2025 @ DIARY NO. 18470 OF 2021

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CIVIL APPEAL NO. OF 2025 [ARISING OUT OF SLP (C) NO. 3076 OF 2023]

JUDGMENT

B.R.GAVAI, CJI

1. The present batch of petitions in effect seek review

of the judgment and order dated 19th February 2020

passed by this Court in the case of Dheeraj Mor v.

Hon’ble High Court of Delhi1 (hereinafter referred to as

1 (2020) 7 SCC 401

Page 3 of 15 Civil Appeal No. 3947 of 2020 etc. “JUR”) wherein a Bench of three learned Judges held that

the members of the judicial service of a State could be

appointed as district judges either by way of promotion or

the Limited Departmental Competitive Examination

(LDCE). It was further held that under Article 233(2) of

the Constitution, an advocate or pleader with 7 years of

practice could be appointed as district judge by way of

direct recruitment, in case he is not already in the judicial

service of the Union or a State. Thus, it was held that the

rules framed by the High Court debarring judicial officers

from staking their claim as against the posts reserved for

direct recruitment from Bar would not be ultra vires to the

Constitution.

2. Along with the review petitions, many other writ

petitions as well as special leave petitions have been filed,

inter-alia, praying for a declaration that even those

judicial officers who have an experience of seven years at

the Bar prior to their joining as judicial officers would be

entitled to be appointed as district judges via direct

recruitment under Article 233(2) of the Constitution.

Page 4 of 15 Civil Appeal No. 3947 of 2020 etc.

3. We have heard Shri Jayant Bhushan, Shri Dama

Seshadri Naidu, Dr. Menaka Guruswamy, Shri V. Giri,

Shri Anand Sanjay M Nuli, Shri Shoeb Alam, Shri Rajive

Bhalla, learned Senior Counsel and other counsel

appearing for different parties praying that the question

with regard to interpretation of Article 233(2) of the

Constitution requires consideration by a Constitution

Bench of this Court.

4. We have also heard Shri Nidhesh Gupta, Shri C.U.

Singh, Shri Jaideep Gupta, Shri A. Hariprasad, Shri

Shekhar G Devasa, Shri A. M. Bujor Barua, Shri R.

Basant, learned Senior Counsel and other counsel

praying that such a Reference is not necessary.

5. Learned counsel supporting the Reference have

drawn the attention of this Court to the case of G.

Sabitha and others v. High Court of Judicature at

Hyderabad Rep. by its Registrar General and others2

wherein vide order dated 10th May, 2018, this Court had

recorded that the issue as to “whether the judicial officer

who has already completed seven years in Bar being

2 Writ Petition (Civil) No. 316 of 2017

Page 5 of 15 Civil Appeal No. 3947 of 2020 etc. recruited for subordinate judicial services would be

entitled for appointment as Additional District Judge

against the Bar vacancy is pending consideration before

the Constitution Bench in SLP(C) No.14156 of 2015”.

6. It is submitted that in the said SLP(C) No. 14156 of

2015 i.e., JUR, though the issue was referred to a

Constitution Bench, the same came to be decided by a

Bench consisting of three learned Judges of this Court.

7. Attention of this Court is further drawn to the order

dated 23rd January, 20183 passed by this Court in the

JUR wherein after considering the different views in

various pronouncements, this Court had found that the

issue involved substantial question of law as to the

interpretation of Article 233(2) of the Constitution.

Therefore, this Court directed the matter to be placed

before Hon’ble the Chief Justice of India for constitution

of an appropriate Bench.

8. It is submitted that in view of the issue involving

interpretation of Article 233(2) and the language used in

Article 145(3) of the Constitution, the matter ought to

3 (2018) 4 SCC 619

Page 6 of 15 Civil Appeal No. 3947 of 2020 etc. have been referred to a Bench consisting of five learned

Judges and could not have been referred to a Bench of

three learned Judges. It is, therefore, submitted that it is

in the interest of justice that the matter be referred to a

Bench consisting of five learned Judges of this Court.

9. As against this, the learned counsel opposing the

Reference submitted that the JUR only culls out the

principle laid down by this Court in various decisions

including the Constitution Bench judgments of this Court

in the cases of Rameshwar Dayal v. the State of Punjab

and Others4 and Chandra Mohan v. State of Uttar

Pradesh and Others5.

10. It is submitted that in view of the order dated 23rd

January, 2018 since the Reference was made by the Chief

Justice of India to a Bench comprising of three learned

Judges, the Bench has only laid down the law relying

upon the earlier Constitution Bench judgments and

therefore, a fresh Reference would not be necessary.

4 (1960) SCC OnLine SC 123; (1961) 2 SCR 874 5 (1966) SCC OnLine SC 35; (1967) 1 SCR 77

Page 7 of 15 Civil Appeal No. 3947 of 2020 etc.

11. Various other issues on the merits of the matter(s)

have also been pressed by the learned counsel. However,

we do not find it necessary to refer to them inasmuch as,

at this stage, we are only concerned with the question as

to whether the issue involving interpretation of Article

233(2) requires to be referred to a Constitution Bench of

this Court or not?

12. Insofar as the reliance placed by the learned counsel

opposing the Reference on the judgment of the

Constitution Bench of this Court in the case of

Rameshwar Dayal (supra) is concerned, this Court was

considering the question with regard to the candidates

who had been enrolled as the advocates of the Lahore

High Court on various dates between 1933 and 1940. The

contention raised was that after the partition of the

country which led to the establishment of a High Court of

Judicature for the Province of East Punjab i.e., Punjab

High Court on 15th August, 1947, since the said

candidates did not have 7 years’ standing as advocates in

the Courts in India, they did not fulfil the requirement of

Article 233(2) when they were appointed as district

Page 8 of 15 Civil Appeal No. 3947 of 2020 etc. judges. The question, therefore, was as to whether the

years of practice that the said candidates had in Lahore

High Court before the partition of the country and before

the establishment of the Punjab High Court would also be

taken into consideration for the purpose of counting of the

period of 7 years. To answer the said question, the

Constitution Bench of this Court placed reliance on

Clause 6(2) of the High Court (Punjab) Order, 1947 read

with Section 8(3) of the Bar Council Act, 1926 to hold that

an Advocate of the Punjab High Court was entitled to

count the period of his practice in the Lahore High Court

for determining his standing in the Bar.

13. Insofar as the judgment of the Constitution Bench

in Chandra Mohan (supra) is concerned, the question

that arose for consideration before this Court was whether

the Governor can appoint as district judges, persons from

services other than judicial service, that is to say, whether

the Governor can appoint a person who is in the police,

excise, revenue or such other services as a district judge?

Answering the said question, this Court observed that

acceptance of this position would take us back in the pre-

Page 9 of 15 Civil Appeal No. 3947 of 2020 etc. independence days and that too to the conditions

prevailing in the Princely States when appointments in

the judicial service were made from police and other

departments. This Court observed that this would hit the

very principle of judiciary being an independent service.

14. The Constitution Bench in Chandra Mohan (supra)

observed that though Article 233(1) of the Constitution is

nothing more than a declaration of the general power of

the Governor in the matter of appointment of district

judges, it does not lay down the qualifications of the

candidates to be appointed or denote the sources from

which the recruitment has to be made. It was further

observed that the sources for the appointment of district

judges were indicated in Clause (2) of Article 233 which

provided two sources, namely, (i) persons in the service of

the Union or of the State, and (ii) advocate or pleader. The

Court was posed with a question as to whether the service

of the Union or of the State would mean any service of the

Union or of the State or does it mean the judicial service

of the Union or of the State. The Court observed that

sources indicated that the term “service” mentioned

Page 10 of 15 Civil Appeal No. 3947 of 2020 etc. therein is the service pertaining to the court. The

Constitution Bench also relied on Article 236(b) which

defines the expression “judicial service” to mean a service

consisting exclusively of persons intended to fill the post

of district judge and other civil judicial posts inferior to

the post of district judge. The Constitution Bench,

therefore, held that the term “service” mentioned under

Article 233(2) of the Constitution can only mean the

judicial service.

15. As such, the questions that came up for

consideration before both the Constitution Benches in the

cases of Rameshwar Dayal (supra) and Chandra

Mohan (supra) are different from the one which arises for

consideration in the present matters.

16. At this juncture, it will be apposite to refer to Article

145(3) of the Constitution which reads thus:

“145. Rules of Court, etc xxxx xxxx xxxx (3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for

Page 11 of 15 Civil Appeal No. 3947 of 2020 etc. the purpose of hearing any Reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.” [emphasis supplied]

17. It can thus be seen that Article 145(3) of the

Constitution provides that the minimum number of

Judges, for the purpose of deciding any case involving a

substantial question of law as to the interpretation of the

Constitution or for the purpose of hearing any Reference

under Article 143 shall be five.

18. A Bench of three learned Judges of this Court in the

case of Janhit Abhiyan v. Union of India and Others6

6 (2021) 11 SCC 78

Page 12 of 15 Civil Appeal No. 3947 of 2020 etc. to which one of us, B.R. Gavai, J (as he then was) was a

member, has observed thus:

“21. As such, we are of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges.

22. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard by a Bench of five Judges….”

19. Being conscious of the position as emanates from

Article 145(3), as also of the fact that the issues involved

require interpretation of Article 233(2) of the Constitution,

this Court vide order dated 23rd January, 2018 had

directed the matter to be placed before the Chief Justice

of India in which subsequently JUR was pronounced.

20. Ordinarily, in view of the question involving

interpretation of Article 233(2), the matter ought to have

been placed before a Bench of five learned Judges.

However, it appears that the same was placed before the

Bench of three learned Judges and the JUR was delivered.

21. We are, therefore, of the considered view that the

issues involved in the present batch of petitions ought to

Page 13 of 15 Civil Appeal No. 3947 of 2020 etc. have been decided by a Constitution Bench of not less

than five Judges.

22. At this stage, it will also be relevant to refer to Article

233(2) of the Constitution which reads thus:

“233. Appointment of district judges

xxxx xxxx xxxx (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.”

23. Upon a perusal of the text of Article 233(2) and in

light of the submissions advanced by the learned counsel

for the parties on the interpretation of the provision, we

are of the considered view that the following two issues

are substantial question of law as to the interpretation of

Article 233(2) of the Constitution:

(i) Whether a judicial officer who has already

completed seven years in Bar being recruited for

subordinate judicial services would be entitled for

appointment as Additional District Judge against

the Bar vacancy?

Page 14 of 15 Civil Appeal No. 3947 of 2020 etc.

(ii) Whether the eligibility for appointment as a

District Judge is to be seen only at the time of

appointment or at the time of application or both?

24. In view of the discussion above, we pass the

following order:

i. We refer the aforesaid issues for consideration of a

Constitution Bench of five Judges of this Court;

ii. The Registry is directed to place the matter before

the Chief Justice of India on the administrative side

for obtaining appropriate orders; and

iii. This batch of petitions would be heard after the

Reference is decided by the Constitution Bench.

..………………………CJI [B.R.GAVAI]

..…..………………………J [K. VINOD CHANDRAN]

….…………………………J. [N.V. ANJARIA] NEW DELHI, AUGUST 12, 2025

Page 15 of 15 Civil Appeal No. 3947 of 2020 etc.